Subject: Publishers Position Paper
From: Emanuella Giavarra (ecup.secr@dial.pipex.com)
Date: ti 11 kesä 1996 - 20:57:35 EEST
Dear ecup-list subscribers,
At the annual meeting of the International Publishers Association in
Barcelona last April, the enclosed Position Paper on Libraries,
Copyright and the Electronic Environment of the International
Publishers Copyright Council (IPCC) was adopted. This Paper has
been written by Carol Risher of the Association of American
Publishers. The paper describes in an interesting way the role the
publishers see for the libraries in the electronic environment.
I think it is a good idea to write an official response on behalf of
EBLIDA/ECUP to the IPA. I would be very grateful to hear from
you what you think of the arguments used in this paper and the role
pictured for the libraries.
Best wishes,
Emanuella Giavarra
moderator
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IPCC Statement:
Libraries, Copyright and the Electronic Environment
The new electronic environment is coming like a
speeding train or a tidal wave - inevitable and unstoppable. It is
coming, but it is not yet here. Hence, the dominant technology has
not yet been determined. Publishers have not yet decided which
products will be available only in electronic form, which will remain
only in print, and which will appear in multiple forms. They are
exploring new products and services to determine which their
customers prefer. Libraries are also being forced by the electronic
environment to make new decisions. They must consider which new
media products to add to their collections and in what formats, and
the impact on existing holdings. They are concerned about what
they can legally do with the products they acquire and what uses can
be made of available technology to provide new forms of customer
service.
The technology provides new services, new products,
and new roles for information providers. Further, the fact that the
electronic environment is both developing and constantly changing
requires the various players to continually readjust their roles while
still managing their basic jobs. A print publisher must add an
electronic publishing component to his operation while still
maintaining the print line. Booksellers must add audio, video, and
multimedia shelves to their bookstores while still carrying the full line
of printed books. Librarians must decide which products to add to
their collections and which equipment to purchase in order to display
or permit patron access to electronic products. And through it all -
with all of the decisions to be made and the challenges of learning to
deal with new technology - the marketplace is changing too. It
makes for unsettling times. But also makes clear the need for
cooperation. The patterns and practices of print publishing and
library use of print products often do not apply in the electronic age.
As will be discussed more fully below, the traditional rights of
authors and publishers must be maintained, but as the attributes of
digital use are quite different from those of the print environment, the
application of those rights must be carefully protected.
It is essential that while planning for the electronic
environment of the future everyone -- creators (authors and
publishers), users, intermediaries (libraries, retailers, electronic
service and access providers), legislators and other policy makers,
and the courts -- recognize the role of copyright in encouraging
creativity and the related publication of valuable information content.
Respect for copyright and compliance with the copyright law is not
an obstacle for the information society; it is a necessary building
block without which no meaningful, vibrant content will be available.
Digital is Different
The new electronic environment is very different from
the analog print environment. Both publishers and librarians are
faced with the need to redefine the way we provide service to
patrons and customers. While we recognize and respect the
historical role of libraries in the information chain, this role, and the
way it has been carried out, is changing. No longer will libraries be
the sole repository of published matter. No longer will libraries be
the only means of obtaining archival information. In some areas,
libraries will be able to fulfill their function by merely pointing to other
electronic repositories and in others they will seek more active roles.
These changes will necessitate cooperation between publishers and
libraries - cooperation publishers are pleased to provide. However,
the changes in the nature of publishing will also necessitate changes
in behavior by libraries if copyright is to be respected and fulfill its
role.
The electronic environment also requires new
understanding of words. To "browse" in the print world conjures the
vision of flipping through pages of a book on a bookstore or library
shelf. In the electronic world, however, there are programs called
"browsers" that create a complete copy of electronic files for
replication on a computer screen. These programs most often are
capable of both downloading and wide dissemination and
proliferation of copies. Making a photocopy of a print product
(however problematic unauthorized photocopying may be) is quite
different from creating a digital version of the same work. Electronic
versions are often as good or better than the original. They can be
replicated an infinite number of times with no image degradation.
They can be distributed electronically, worldwide, in an instant. The
impact of unauthorized digital uses can destroy the value of a
copyrighted work.
Digital Versions of Works Need Copyright Protection Adequate to
their Nature
Many national and international library groups have
argued that they should be able to use digital formats of copyrighted
works in the same way as they used printed versions in the past.
This is a dangerous concept because it disregards the indisputable
fact that digital uses are not equivalent to non-digital uses, and, when
undertaken without regard for copyright, can have immeasurably
harmful consequences.
As noted above, digital "browsing" is not the same as
casually leafing through a few pages of a book on-site at a library. It
is, instead, reproducing and transmitting to thousands of network
users at myriad locations, digital content stored on a single library's
computer.
Similarly, there is not and should not be a "private" or
"personal" use exemption from copyright as such (apart from limited,
legitimate "fair uses" that are subject to sensitive criteria and do not
impact the market for or value of the copyrighted work, or the
interests of the creators). It must be recalled, after all, that
disseminating printed and electronic works to individual consumers
for their "personal" or "private" use is precisely the business authors
and publishers are about.
Unauthorized digital "Lending" -- a clear misnomer -- to
patrons at remote locations will destroy publishers. Their entire
business model is to provide readers with content to read. A
digitized version of a book that can be electronically provided to
anyone anywhere under the label "library lending" directly competes
with both conventional and new authorized forms of publishing and
service to readers that publishers have and will continue to provide.
Many national and regional libraries contemplate
digitizing their print collections to facilitate a virtual library that can
provide service to patrons at remote locations and facilitate resource
sharing. Such a concept will destroy not only the incentive to create
new copyrighted works, but the revenue from existing works that
provides the investment in new works by authors and publishers.
The activities requested by libraries must be measured
by their actual nature, circumstance and effect, not by inherently
faulty analogy to a print product housed in a physical form in an
analog world. When properly examined, the activities will frequently
be found to be beyond the limits of statutory privilege.
Copyright holders and creators must retain the rights
provided by copyright law to determine how to exploit their
copyrights and to thereby be able to treat different types of works
differently: for example, to provide some works direct to consumers
and other works to intermediaries; to package some works as
collections of items and others as individual works; to provide some
products in encrypted form for a limited audience and others more
broadly. A mandate for libraries to re-distribute copyrighted
information for free is a mandate that authors and publishers not risk
the investment in providing the information at all. Such a requirement
would deprive society of the very values that electronic information
is intended to provide.
Not All Libraries Nor All Publishers Are Equivalent
The problem with discussing "library services in an
electronic environment " is that such a generalization presumes that
all libraries are of the same nature. There should be a way to
discuss the impact of technology on various types of libraries to
consider any relevant differences in collections and capabilities of
small, isolated (at least absent electronic links), public libraries and
large, multi-branched facilities, or large research libraries in for-profit
corporations, or libraries with specialized collections in various types
and sizes of academic institutions. Similarly, the differing nature
among the great variety of published and customized works should
be considered in exploring the electronic environment. A highly
specialized work with a limited audience cannot withstand copyright
infringement even if another type of published product has some
level of tolerance for minimal abuse. Generic approaches to the role
of libraries in an electronic environment threaten to ignore these very
important differences with unintended consequences to authors and
scholars alike.
Digital Document Delivery is One of the New Primary Services
Publishers Offer
Digital document delivery, providing scholars and
researchers with individual articles and short excerpts of longer
works, is a new service being offered by publishers. It is not the
same as print-based interlibrary loan. Many publishers around the
world are in the process of developing new services using digital
delivery designed to meet user needs and expectations. These
services include digital document delivery, individual articles
"on-demand," and access to archival databases of previously
published materials with hyperlinked resources.
Although inherently part of the traditional function of
publishing, this new digital publishing is not the same as traditional
print publishing. It provides significant additional value to the reader.
For this reason, the capacity, development, and promise of new
digital publishing should not be undercut, diminished, or abused by
claims that whatever was a permitted or tolerated use of a print
product should equally be permitted with digital products and
services. This behavior would discourage the very innovation that
publishers are developing to serve the marketplace. Publishers
agree that there is a role for libraries in helping patrons to find
relevant information and helping them obtain such documents
(including appropriate reliance on electronic systems), but the role of
libraries must be matched to the new role of publishers so that as
partners we can continue to serve the information needs of the
marketplace.
Unrestricted Library Document Delivery Violates Article 9 (2) of
Berne
Libraries that copy digitally and store copyright works
electronically, even temporarily, as part of electronic document
delivery services are not acting with respect for copyright law nor do
their activities comport with Article 9 (2) of Berne since such activity
directly "conflicts with a normal exploitation" of the new digital
copyright work and "unreasonably prejudices the legitimate interests
of the author."
Transmission of copyright works to "remote" locations is
a violation of copyright. Whether viewed as an aspect of the
reproduction, distribution, performance, or display right, copyright
owners have long retained the exclusive right to authorize the
dissemination of their materials to remote locations. The new and
evolving markets for electronic transmission of text-based works
does not call for an abandonment of the protections and safeguards
built into national copyright laws; to the contrary, it is ample reason
to be extra cautious that the incentive for authors and publishers to
create products and services for use in remote, "distance," or other
transmission markets is encouraged and preserved.
Lending of Electronic Products Bears More Risks Than Lending
Print Products
Concern has been raised by libraries about new market
arrangements for electronic products. These library groups have
suggested, for example, that legislation should regulate and prohibit
copyright holders with respect to individual contracts, subscriptions,
and like arrangements affecting use of electronic resources by
librarians and library patrons. Yet any legislation that interferes with
a copyright holder's rights to create and develop new forms of
publications and new types of electronic value-added resources will
only harm the public by discouraging such creativity. The
marketplace is a powerful incentive for creators. However,
electronic products are easily copied and hence far more vulnerable
to copyright abuse. Any legislation that either precludes normal
exploitation or requires a limit on the right to engage in normal
business practices can only inhibit the creativity and investment to
create such products. This is not wise for either the libraries or
governments to attempt.
Licenses, transactional arrangements, and other
contractual terms developed to protect copyrighted works in the
electronic world must be respected by libraries and their patrons. It
is the very capacity of electronic publishing for enhanced interactivity
and direct subscriber contact that promises exciting new
opportunities, products and services for readers, scholars, authors
and publishers alike. Unfettered economic balancing and refinement
of markets will assure publisher experimentation, innovation, and
exploitation of multiple access channels for the public. Additionally,
it will be through such contracts and licenses that publishers and their
library customers will develop new methods for serving library
patrons.
Preservation and Conservation Does Not Mean Unrestricted Use
Publishers agree that libraries play an important role in preservation
of a countries' cultural heritage. We agree that full use of technology
should be employed in preservation and conservation of such
materials. However, we have concerns over how copyrighted
works should be protected once a library has converted them to
digital form for preservation purposes. It must be understood that
once a work is in digital form, it is not functionally, at least, the same
product. Because digital material is different from printed material in
the manner in which it can be replicated, manipulated, distorted, and
broadly disseminated, it should not be viewed in the same way as
printed material. Publishers welcome the opportunity to work with
libraries and library associations to consider both permitted and
limited uses that can be made of the digitized formats to support the
goals of the library community while preserving the rights of
copyright holders. Preservation is a goal both groups support, but
the unintended impact of unrestricted use could harm both libraries
and publishers, to say nothing of the integrity of the work and the
level of trust in the digital version on which patrons must be able to
rely.
International Harmonization
In this era of global electronic networks, mature
international standards of copyright protection are necessary.
However, the IPA opposes any national or international legislation
that would artificially limit how technology can be used or how
copyright holders can provide their works to their intended markets.
The copyright community has the incentive to create technological
means to provide valuable copyright works to the widest possible
audience while protecting these works from unauthorized
redistribution. The marketplace will provide the balance needed to
insure that publishers reach their intended audience. Such a goal can
not be legislated.
Conclusion
Libraries must realize that publishers exist to make
information public - to provide content in a manner that is useful and
valuable to the audience. Publishers, as well as the library
community, are excited about the ways in which computer networks,
digitization of works, and other emerging techniques can enhance
distribution of copyright works and enrich the reading and scholarly
public. That is the reason, of course, why publishers are called
"publishers" and not "withholders" of information. But the rules of
the road and patterns of behavior in the electronic environment must
be developed according to the principles and purposes of copyright
laws and the rights and interests of creators if they are to meet the
needs of the public.
Libraries and publishers should continue to work
together to explore this new digital environment. There are many
examples of such cooperation and pilot projects ongoing at this time
as individual publishers explore with individual libraries new ways to
use the networked environment for delivery and service. Both
publishers and libraries will have new roles, new responsibilities, and
new means to carry out these roles and responsibilities. IPA and its
member publishing organizations look forward to continued and
renewed cooperation with both international and national library
associations in the years ahead to achieve our common goals of
providing copyright information to scholars, researchers and the
public while respecting and protecting the rights of copyright holders.
22 April 1996
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